Children's Aid Society of the Regional Municipality of Waterloo v. N. H., 2021 ONSC 2384

COURT FILE NO.: FC-18-FO-674

DATE: 2021/04/06

WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO

SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT

BETWEEN:

Children’s Aid Society of the Regional Municipality of Waterloo,

Applicant

– and –

N. H.,

Respondent

Sherry Currie, Counsel for the Applicant

Walter Wintar, Counsel for the Respondent

Samson Cree First Nation [noted in default]

Jennifer Bolduc, Counsel for the Children, O. A. N. H., E. S. V. H. and S. E. O. H.

HEARD: January 25 - 29, February 1 – 5, and February 8 – 12, 2021

CORRECTED DECISION: The text of the original Judgment was corrected on April 12, 2021, at, paragraph 202. 3. d., “Should the maternal aunt determine that the face-to-face access referred to in paragraph 2(b) requires supervision, and should she not be in a position to provide such supervision or to identify an appropriate third party to provide such supervision, The Children’s Aid Society of the Regional Municipality of Waterloo shall provide support regarding supervision of the access. The Children’s Aid Society of the Regional Municipality of Waterloo shall review the need for such support on an annual basis for the duration of the custody Order, by removing the number “2(b)” from the paragraph and inserting the number “3(b)” to the paragraph.

REASONS FOR JUDGMENT

A. OVERVIEW

Introduction

[1] This is a child protection application in which the Children’s Aid Society of the Regional Municipality of Waterloo [the “CAS” or the “Society”] seeks to place three children, now aged six, ten, and eleven, in the custody of their maternal aunt, N. L., [the “maternal aunt”], who resides in Alberta. The father, N. H. [the “father”] seeks placement of the children with him under terms of supervision, or in the alternative, placement of the children either with his mother, L. H. [the “paternal grandmother”] or with his sister, R. H. [the “paternal aunt”], under terms of supervision. Tragically, the children’s mother, C. H., [the “mother”] passed away on October 21, 2018.

[2] For the reasons that follow, I grant the Order sought by the Society, with minor adjustments, placing the children in the custody of their maternal aunt, on the terms set out below.

[3] The children in this case are First Nations children. As such, this case engages both the application of the Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14 [the “CYFSA”], as well as Bill C-92, An Act Respecting First Nations, Inuit, and Métis Children, Youth and Families, S.C. 2019, c. 24 [“the federal legislation”]. However, even without the application of the latter statute I would have reached the same conclusion, that is, placement of the children with their maternal aunt in Alberta, as this is the least disruptive alternative which will protect the children and is in their best interests.

[4] At the outset I wish to acknowledge that the father has experienced significant loss, with the untimely passing of a close friend, followed by the death of the children’s mother, his wife. I also recognize that the father loves the children dearly, as do the paternal grandmother and the paternal aunt. The decision herein is not intended in any way to diminish that love. However, at this time, the three potential placements sought by the father will not protect the children from risk of harm.

[5] The Society and the maternal aunt both emphasized their sincere hope that the father will take steps to improve his circumstances, so that the children could eventually be returned to his care. The court echoes that encouragement.

Issues

[6] The court has been specifically asked to decide the following issues:

a. The basis on which the children are to be found in need of protection (the need being conceded but the specific section not identified by the father); and

b. The applicable disposition, including the father’s access, in the event that the children are not placed with him.

Procedural Steps and Court Orders

[7] The following are the main procedural steps that have been taken and court orders made in this matter to date:

a. December 17, 2018, First return of Child Protection Application, and motion to place the children in the temporary care of the Society;

b. December 17, 2018, Temporary Without Prejudice Order of Neill J., placing the children in the care of the Society;

c. March 20, 2019, Temporary Order of Kerrigan-Brownridge J., returning the children to the father under terms of supervision;

d. May 28, 2019, Temporary Without Prejudice Order of Breithaupt Smith J., again placing the children in the care of the Society;

e. October 31, 2019, Order per Madsen J. permitting withdrawal of proceedings in relation to the oldest child, A.;

f. December 7, 2020, return of Amended Child Protection Application;

g. January 22, 2021, Temporary Order per Braid J. that the children have weekly virtual access to their father pending the decision in this trial.

Procedure in the Trial

Virtual Trial

[8] This trial took place by Zoom with the consent of all parties.

[9] During the trial, the father and his witnesses were all living in the same home. This initially raised a question about how best to ensure the privacy of the proceedings given the witness exclusion Order. The Society provided a headset to the family for use during the trial.

[10] I was satisfied with the arrangements made by the family to ensure that witnesses were not privy to the proceedings except during their own testimony, and neither the Society nor the OCL objected to the manner in which the father or his witnesses participated.

Evidence Tendered after Trial Concluded

[11] The trial took place over three weeks in January and early February 2021. During the trial the father made certain statements about programs he had taken. He had not previously advised the Society of having taken these programs. After that testimony, the Society requested that the father sign consents to permit verification of those statements. He signed consents as requested.

[12] On the last day of trial, the Society recalled the current worker Ms. Parent, in reply, to testify as to the outcome of sending those consent documents to the service providers. As of the last day of trial, two had written back to her stating that they were unable to confirm that the father had been enrolled in the programs he had asserted. Two other service providers had not responded by that time.

[13] After the closing of the trial, however, the court received correspondence from the father’s counsel, with the consent of counsel for the Society and the OCL, requesting that the court receive and consider two letters from a psychiatrist seen by the father in March and July 2020. All counsel were prepared to have the documents become evidence in the trial, subject to the court’s determination of weight. I have considered those letters, which are discussed further below. The court has marked the letter from Dr. Surapaneni dated March 9, as Exhibit 26. The letter from Dr. Surapaneni dated July 6, 2020 has been marked as Exhibit 27.

B. EVIDENCE

Witnesses and Credibility

[14] The Society called the following witnesses in this proceeding:

a. Nathalie Persad, Child Protection Worker;

b. Janna Tatton, Child Protection Worker;

c. Donna Desgroseilliers, Director of Indigenous Services;

d. Juanita Parent, Child Protection Worker;

e. Mark Wotton, Kinship Worker;

f. Theresa Coon, Family and Community Worker;

g. Carrie McCutcheon, Children’s Services Worker;

h. Deborah Bowler-Sprague, Children’s Services and Youth Worker, and Resource Worker;

i. Claudette Ratcliffe, Kinship Assessor, Alberta;

j. Angela Pilarski, Kinship Service Worker; and

k. N.L, Maternal Aunt.

Credibility of the Society’s Witnesses

[15] In CAS of S.D.G. v. A.R., S.C., and D.A, 2021 ONSC 712, Desormeau J. discussed credibility determinations in the context of a child protection case. I will not repeat her summary of the governing principles, with which I agree entirely. She highlighted the delicate nature of credibility determinations, stressing that ultimately, the task for the court is to determine not merely the witnesses’ truthfulness, but also the accuracy of their evidence: see paras. 40 - 44.

[16] In general, I had no difficulty with the credibility of the Society’s witnesses in this trial. Each testified in a straightforward manner, was clear about what they could or could not recall, and was balanced in their statements. I permitted Society workers to consult their case notes as necessary, without objection. The workers testified that their notes were made in the ordinary course of business promptly following interactions with the family.

[17] I have the following additional comments about the credibility of several protection workers who worked with the father:

a. Ms. Tatton was the worker for the family between June 2018 and December 2018. She testified as to her concerns regarding the father’s mental health, hoarding behaviours, and housing issues, as well as to her recommendations for services. At the same time, she testified to the father’s strengths, including that he is loving and involved, can be nurturing in his interactions, and planned to do things with the children. She was able to see positive aspects of the father as well as his challenges.

b. Ms. Desgroseilliers took over from Ms. Tatton and was the worker between December 2018 and March 24, 2020. She testified to her concerns with respect to the father’s mental health, substance use, and housing issues throughout her involvement with the family. Like Ms. Tatton, she gave her testimony in a balanced manner and testified not only to the father’s challenges but also to his strengths. For example, she stated that he could be cooperative (and gave examples), and stated that he did not prevent her from meeting with the children. She testified that the father’s interactions with the children are positive and that there is “no doubt that he loves his children.” She stated that at times the father showed some insight into the child protection concerns. She also confirmed that the children’s relationship with their sister, A., who now resides in Cambridge, Ontario, is important to them.

c. Ms. Parent took over from Ms. Desgroseilliers as the next worker for the Society in March 2020, and remains the worker presently. Like her colleagues, I found her to be a credible witness, delivering balanced testimony and capable of recognizing the positives as well as the challenges. She stated that the father was cooperative with her. My main observation of this testimony is that it seemed to show that at the time of Ms. Parent’s involvement, the Society was less focused on connecting the father with services. While Ms. Parent stated that the father could contact her if he needed support, it appeared that there was less active effort to attempt to put the father in a position where he could assume full time parenting responsibilities. I do recognize that Ms. Parent took on work with this family at the onset of COVID-19 in March 2020, and there were delays in getting connected with the father.

d. Ms. Coon was involved with the family as a Family and Community Worker from January 2019 onwards, and continues to work with the father. She arranged and supervised numerous visits for the children with the father and his family. Ms. Coon also gave her evidence in a straightforward manner, setting out the challenges she observed. She also noted that from time to time there were improvements but that the situation fluctuated.

[18] In the section on “Disposition”, below, I comment on the credibility of the maternal aunt, N. L. and the Alberta kinship assessor, Ms. Ratcliffe. I found them both to be credible witnesses.

Credibility of the Father’s Witnesses

[19] The father testified and called the following witnesses in this proceeding:

a. L. H., the paternal grandmother;

b. R. H., the paternal aunt; and

c. Amanda Trites.

i) The father’s evidence

[20] While I do not doubt the father’s heartbreak at the loss of his wife, his earnestness in wanting the return of his children, or his testimony regarding his love for them, overall, I have serious concerns regarding the father’s credibility.

[21] The father testified, for example, that he attended certain addiction programming, and presented an undated, typo-filled letter from Grand River Hospital purporting to confirm one of those programs. However, by the end of the trial Grand River Hospital had provided two letters, indicating that the father had not been seen there since the year 2000, and that there was no record of him attending the program he claimed to have attended (“withdrawal management”). This is obviously a significant concern. Further, when Society staff followed up on other programming the father claimed to have attended with K-W Counselling, that agency confirmed by letter that it had no record of same.

[22] I do note, as set out above, that the father’s testimony that he met with a psychiatrist was confirmed post-trial, although the letters from the psychiatrist were not available to the parties before the last day of trial (see paras. 10 - 13 above). Those letters appeared to confirm two visits, although the father asserted that he had seen the psychiatrist more frequently than that.

[23] The father falsely swore in his affidavit, dated February 25, 2019 in support of his motion for the return of the children in early 2019, that he had “never” used illegal substances. He agreed at trial that this was not true. He also did not disclose at that time that illegal drugs were involved in the death of his friend M. on December 31, 2017, stating instead the causes were underlying health issues including diabetes, cancer, and asthma. This is an important omission.

[24] Based on the foregoing, where the father’s statements conflict with those of other witnesses, I have preferred the evidence of the latter unless otherwise stated.

ii) The Paternal Aunt’s Evidence

[25] I also have concerns about the credibility of the paternal aunt. While she presented as sweet and caring, with positive attributes as a mother and an aunt, I have difficulty with her statements that she had no knowledge of any drug use by the father, or of the reasons for his hospitalization in May 2019. Either the paternal aunt was being evasive, or she was remarkably unaware of the father’s challenges, itself a concern from a protection perspective.

[26] I also observed that in her testimony, the paternal aunt retreated from statements made to Mark Wotton, the Society kinship assessor, about the father’s difficulties. While she acknowledged the father’s challenges when she met with Mr. Wotton (drug use, mental health issues, and hoarding), in her testimony at trial she stated that the concerns about the father were merely “accusations.” Overall, the paternal aunt presented as a sister wanting to protect her brother by not saying anything she thought could harm his case, rather than as a witness committed to truthful testimony.

iii) The Paternal Grandmother’s Evidence

[27] I found the paternal grandmother to be a credible witness in some but not all respects. On the one hand, she was candid and forthright about her lack of affection for the Society and Society workers, and the fact that she would not call them “for anything,” statements that did not help the father’s position but were honest and straightforward. She did not mince words when discussing her disdain for the Society.

[28] On the other hand, either arising from a genuine lack of insight or a desire to protect her son in this litigation, she had great difficulty acknowledging the protection concerns which had led to the Society’s intervention, until directly confronted with statements she had made at various points since the Society became involved. For example, she initially testified that she did not have concerns that the father was using drugs or alcohol while he was at the residence on V. Road before his overdose in May 2019, but then acknowledged having told the hospital that he was likely using drugs to cope, had a history of “known substance abuse” including cocaine and crystal meth, and had been suspecting a drug problem over the last six months. This mirrors the experience of Ms. Pilarski, the kinship assessor, who testified that the paternal grandmother initially denied the protection concerns, but then shifted her position when challenged. She stated that it was as if the paternal grandmother’s approach became “fine, there are issues,” as opposed to truly showing insight into the concerns.

iv) Amanda Trites

[29] The father also called Amanda Trites, a representative of Healing of the Seven Generations (H7G), based in Kitchener Waterloo. She testified about the wide range of services offered by the agency to First Nations individuals. I found her evidence credible, and the information that she provided to the court about that agency to be impressive.

Affidavit and other Documentary Materials

[30] In addition to oral evidence, the court received and marked documentary materials including affidavits constituting the evidence-in-chief of several Society witnesses, police record checks, notices from housing authorities, the kinship assessment in relation to the maternal aunt, and several letters. All documents were admitted and marked as exhibits without objection, with the qualification that hearsay statements of non-parties within those documents would not be admitted, unless the declarant was called as a witness.

Statements of the Children

[31] At the outset of the trial, all counsel agreed that statements made by the children to parties in this proceeding regarding their views and preferences were admissible, and that OCL counsel could share those views and preferences from the “counsel table”. This was of course subject to the court’s determination of what weight, if any, to give to particular statements of each child at various points in time.

Statements of the Mother, who is deceased

[32] The court heard argument on the admissibility of several statements of the mother to parties and witnesses before her passing. Society workers, the paternal grandmother, and the father testified to statements made to them by the mother. Argument was made in general terms – that is, on whether the mother’s statements writ large could be admitted, rather than on a statement-by-statement basis. In general, the statements related to the mother’s expressed concerns about the state of the home, the father’s mental health issues, and his alcohol and drug use in 2018.

[33] I agree with Mr. Wintar that the statements by the mother are hearsay, as they are sought to be admitted for the truth of their contents and she was “unavailable” to be cross-examined. There is no traditional exception that applies to render those statements admissible.

[34] However, I also agree with counsel for the Society that courts have developed a flexible and principled approach to the admissibility of hearsay. In my view, the mother’s statements are admissible based on the concepts of necessity and reliability: see R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; and R. v. Bradshaw, 2017 SCC 35, [2017] S.C.R. 865.

[35] In my view, the necessity criteria is met – the mother was not able to testify and there was no other way to get her evidence before the court. In terms of threshold reliability – that is, the question of admissibility, R. v. Khan discusses markers of reliability which I find are present in this case: numerous statements were recorded by workers in contemporaneous case notes, at least one statement was made spontaneously (when the mother “vented” to worker Ms. Tatton), and there is corroborating evidence in the statements of others at approximately the same time. There was no indication of coercion, influence, or leading questions when the mother’s statements were made. I am satisfied that the mother’s statements are sufficiently reliable so as to overcome the dangers that arise from the difficulties in testing them.

[36] Accordingly, I find the statements of the mother to witnesses who testified in this trial are admissible as evidence. I do note however, that my conclusions in this matter do not require the admission of the mother’s statements, or reliance upon them – the evidence, exclusive of those statements, would lead the court to the same protection finding and the same disposition.

Background and Chronology

[37] The following is a brief chronology of relevant events in this matter. Further details are set out below in the sections on protection finding and disposition.

[38] The father and mother met in Alberta in the mid-2000’s. The mother at that time was parenting her child, A., born in 2003. A. is now over 18, and the protection application in relation to her was withdrawn in 2019. A. has a child, G., who is one year of age.

[39] While residing in Alberta, the parents had three children together: E., who is eleven, O., who is ten, and S., who is six years of age. The paternal grandmother travelled from Ontario to Alberta to spend time with the family around the birth of each child.

[40] In 2015, the family considered a move to Ontario, where the father’s family resides. The mother and the children came to Ontario in the summer of 2015, and stayed with the paternal grandmother for about two months. The father stayed in Alberta to work.

[41] The family then moved to Ontario during the summer of 2016. They initially stayed with the paternal grandmother at L. Court, and then obtained their own housing on C. Street in Kitchener.

[42] The Society first became aware of the family in early January 2018. On December 31, 2017, the father’s friend M. became ill in the family’s home and died. The friend had certain underlying conditions, but it became apparent during the trial that drugs were also involved in that death. While the father initially testified that he did not have knowledge that the friend used drugs, he later stated that he knew the friend used fentanyl from time to time. The mother and the children were not present when this took place as they were in Alberta visiting family for the holidays.

[43] The Society again became involved with the family in May 2018 due to concerns about the condition of the family home on C. Street. There had been reports of “hoarding” behavior and an incident when the police attended with a by-law officer. The Society worker, Ms. Persad, was concerned about possible mental health issues and observed bottles outside the home. At that time, the paternal grandmother told the worker that the mother and children were staying with her at L. Court due to concerns about the state of the family’s home on C. Street.

[44] The matter was transferred to ongoing services on May 25, 2018.

[45] In July 2018, the parents received a Notice of Eviction from the family home at C. Street, which they did not contest. The mother and the children went to stay with the paternal grandmother at L. Court. Shortly thereafter the father joined them at the paternal grandmother’s home.

[46] On August 23, 2018 there was an altercation between the father and the oldest daughter, A., which resulted in an assault charge against the father. He pled guilty. The child A. initially stayed in a group home and then moved to a foster home under a Temporary Care Agreement signed September 21, 2018 with the mother. The father returned to the paternal grandmother’s home after his conditions were lifted, where the mother and three other children continued to reside. The child A. and the father could not both be at the paternal grandmother’s home and that paternal grandmother did not want A. there at that time.

[47] On October 15, 2018, while residing with the paternal grandmother, the mother had a seizure and was rushed to the hospital. The father’s family contacted the maternal aunt in Alberta, who came with her daughter and siblings to Ontario. The mother did not recover and died on October 21, 2018. The father testified that she died from “an oversized heart because she cared too much.” The mother’s death was understandably deeply traumatic for the family. The father was heartbroken. The father attended the mother’s funeral in Alberta.

[48] After attending the paternal grandmother’s home at L. Court at the time of the mother’s seizure, emergency services alerted the fire department to concerns about the condition of the home. Concerns included sleeping arrangements, combustibles, and significant clutter in the home. The family was told that no one should sleep in the basement.

[49] Society worker Ms. Tatton, who was involved from June to December 2018, testified that she was becoming increasingly worried about the situation in the home. She stated that she was concerned about the number of people coming and going, conflict, the involvement of the fire department, evidence of hoarding, and the father’s mental health challenges.

[50] On December 12, 2018, Society worker Ms. Desgroseilliers attended the paternal grandmother’s home at L. Court. When she arrived, a tall bookcase by the door fell over. She agreed to come back a bit later. Due to the Society’s concerns about the state of the home, including conflicting information about sleeping arrangements, the children were brought to a place of safety later that day. They were taken to the same foster home that their older sister A. was residing in. The foster parent was an Indigenous community member.

[51] On December 17, 2018, a temporary without prejudice Order was made placing the children in the care of the Society.

[52] The maternal aunt came to Ontario to visit with the children from December 28 – 31, 2018. The children stayed in a hotel with her for those four days.

[53] In December 2018 the father was approved for subsidized housing. On January 3, 2019, the father moved into a three-bedroom unit on V. Road in Kitchener. The home was empty and clean when he moved in.

[54] In December 2018 or early January 2019, the Society briefly opened a file in relation to the paternal aunt, who resided in the home from which the father’s children were apprehended. The file was closed shortly thereafter.

[55] The oldest child A. visited the maternal aunt in Alberta from January 9, 2019 to February 7, 2019. When she returned, she went to the home of the paternal grandmother, rather than to the foster home, as had been expected. The foster parent alerted the police that A.’s whereabouts were not known. The paternal grandmother initially denied to the police that A. was with her.

[56] On March 20, 2019, the court granted the father’s motion to have the children returned to his care under temporary terms of supervision. On March 22, 2019, the three youngest children were returned to the father’s care at the V. Road home.

[57] Concerns arose quickly about the condition of the V. Road home after the return of the children. On May 16, 2019, by-law officers attended the home. The father agreed to make certain changes to address the concerns.

[58] On May 23, 2019, while decluttering the home and readying it for a visit from the maternal aunt, the father took a pill which resulted in him becoming unconscious and hospitalized. The drug screen administered by the hospital showed a positive reading for cocaine, amphetamines, methamphetamines, and MDMA. The father testified that he did not know what was in the pill but “assumed”, when he took it, that it contained illegal drugs. Importantly, the father disclosed for the first time during the trial that he had taken a pill which lead to this hospitalization.

[59] Following the father’s overdose on May 23, 2019, the children were again brought to a place of safety. They were placed is the same foster home as previously. On May 28, 2019, a temporary Order was made confirming that placement.

[60] On June 3, 2019, the Region of Waterloo issued a Notice to end the father’s tenancy at V. Road for non-payment of rent.

[61] In June 2019, the maternal aunt visited the children in Ontario and attended a circle meeting through Healing of the 7 Generations [“H7G”].

[62] In August 2019, the three youngest children visited the maternal aunt in Alberta.

[63] On September 5, 2019, a referral was made for a kinship assessment in relation to the paternal grandmother. The assessment was undertaken by Ms. Pilarski. It was not approved.

[64] On October 12, 2019, a referral was made for a kinship assessment in Alberta in relation to the maternal aunt. The assessment was undertaken by Claudette Ratcliffe and was approved.

[65] In October 2019, the children visited the maternal aunt in Alberta.

[66] In December 2019, the children again visited the maternal aunt in Alberta.

[67] There were conflicts in the evidence about where the father lived from October 23, 2019 when he left the V. Road residence until October 2020 when it was agreed that he lived with the paternal grandmother at L. Court. The father’s evidence was that he “lived” with the paternal grandmother at L. Court during this period, consistent with his affidavit sworn December 31, 2020 in support of his access motion heard just before the trial. However, both the paternal grandmother and the paternal aunt testified that the father stayed at L. Court “on and off” during this period, the paternal grandmother stating that the father would stay with her, but also stay with his brother, intermittently. Both appear to have advised the Society at earlier points that the father was not living there during this period.

[68] What is clear is that from November 1, 2019 to October 2020, is that the father did not establish a residence of his own. I accept that he was “coming and going” from the paternal grandmother’s home rather than “living” there for that period.

[69] On March 10, 2020, a kinship assessment was undertaken by Mark Wotton in relation to the paternal aunt, R. H. The paternal aunt’s plan was not approved.

[70] In mid-March 2020, restrictions related to COVID-19 resulted in virtual access for the father rather than in-person access.

[71] In June 2020 a decision was made that the children would have summer access with their maternal aunt in Alberta. The father had an in-person visit with the children on June 26, 2020, and then the children left for Alberta on July 3, 2020 for a visit.

[72] While the children were in Alberta, they made certain disclosures about their treatment at the foster home in Ontario. At about the same time, the Ministry was making enquiries about the home arising from the foster parent not having had a SAFE assessment. A decision was made to close the foster home. The children were thus unable to return to that home.

[73] The Society had difficulties identifying another foster home in this region with an Indigenous caregiver that would be able to care for all three children. A decision was made that the children would remain in Alberta on an extended visit with their maternal aunt.

[74] In September 2020, the Society and the maternal aunt planned for the father to visit the children in Alberta. The visit was to take place between September 18 and 25, 2020 but took place between September 20 and September 28, 2020, because the father missed the flight the Society had organized for him due to an issue regarding his documents. He had a similar issue when travelling to Alberta for the mother’s funeral in October 2018.

[75] From October 2020 until the trial, the father resided with the paternal grandmother.

[76] On November 4, 2020, a placement for all three children with an Indigenous family became available in London, Ontario. The Society was of the view that it was preferable for the children to remain in Alberta with their maternal aunt pending the outcome of the trial and did not return the children to Ontario.

[77] In December 2020, the Society amended its protection application to seek Extended Society Care.

[78] On January 8, 2021, the Society brought a motion to permit virtual access with the father pending the outcome of the trial. The father sought in-person access, which would have necessitated the children’s return to Ontario. On January 22, 2021, Braid J. Ordered that the children have weekly virtual access to their father. This effectively permitted the children to remain in Alberta pending the outcome of the trial.

C. FINDINGS

(i) Statutory Findings

[79] The statutory findings in this matter are not in dispute.

[80] On the consent of the parties and based on the evidence at trial, the Order below contains the following statutory findings:

a. The children’s names are:

i. E. S. V. H., born [Date Omitted, 2010]

ii. O. A. N. H., born [Date Omitted, 2011]

iii. S. E. O. H., born [Date Omitted, 2015]

b. The children are First Nations children, having a connection with the Samson Cree First Nation in Alberta;

c. The children were removed from the care of the father on May 23, 2019 at 6 L. Court in Kitchener, Ontario.

[81] While the identity of the children as First Nations children is not in dispute in this case, I make the following additional comments:

a. Under the CYFSA, identification of a child as a First Nations, Inuk, or Métis child is not dependent on “status” within the meaning of the Indian Act, R.S.C. 1985, c. I-5, and is much broader than under the predecessor provincial legislation, the Child and Family Services Act, R.S.O. 1990, c. C 11. A child will be a First Nations child in circumstances that include the following: a child or parent identifies the child as a First Nations child; the child is a member of or identifies with one or more First Nations, Inuit, or Métis bands; or, there is information that demonstrates that a relative or sibling of the child identifies as First Nations, Inuit, or Métis; or, there is a connection between the child and a First Nations, Inuit, or Métis community: see O. Reg 155.18, at s. 1.

b. The evidence is that the children have a connection to the Samson Cree First Nation in Alberta, through their mother and her family.

c. Neither the mother nor the children have “status” with that First Nation, nor is that required for a finding under the CYFSA. The maternal aunt described her family as “non-status Indigenous people.” She stated that the particular community of which she, and by extension the children, are a part is the Nehiyawak community in Alberta.

d. The children have been identified both by their father and by the maternal aunt as First Nations children.

[82] I note that during the kinship assessment, the paternal grandmother told Ms. Pilarski in their fifth and last meeting that she has Métis background. I asked whether this was explored during the assessment and Ms. Pilarski indicated that it was not. Ms. Pilarski stated that she was “surprised” when the paternal grandmother made this statement as she had not referred to this before. In previous meetings she had referred herself as a “white” person and expressed concern about the children knowing their “white” family. Ms. Pilarski said that in the circumstances she “wasn’t quite sure” whether the paternal grandmother’s statement about Métis heritage was true.

[83] During her evidence, the paternal grandmother at one point stated that she has “Indian” heritage but was not specific about this. Asked whether she had ever confirmed this heritage she stated that she had not. When the maternal aunt was asked whether the father or paternal grandmother had ever told her about any Métis heritage on their side of the family, she stated that they had not.

[84] In the circumstances, and recognizing that the threshold is low, there is simply not enough evidence for the court to conclude that the children have First Nations, Inuit, or Métis heritage on their father’s side. If in fact the children do have such heritage through their father’s family, the evidence is that it has not been explored by either the father or the paternal grandmother. There was no evidence of a connection to any specific band or community.

(ii) Finding in Need of Protection

[85] On a child protection application, the court must first ascertain whether the children are in need of protection before turning to disposition, including access arrangements, if any. Under s. 93(2) of the CYFSA, evidence relating only to disposition shall not be considered in determining whether the child or children are in need of protection.

[86] In this case, the Society seeks a finding that the children are in need of protection under s. 74(2)(b)(ii) of the CYFSA, which provides as follows:

74. Definitions

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s

i. failure to adequately care for, provide for, supervise, or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

[emphasis added]

[87] The father does not dispute that there is evidence sufficient for a protection finding, both at the date of removal of the children from his care and currently. He acknowledges that this is conceded through his position seeking placement of the children in the context of supervision Orders. However, at trial, counsel did not have instruction from the father as to which subsection he could consent to. Counsel for the father invited the court to consider the subsection advanced by the Society as the basis for the finding, without consenting to same.

[88] In cases where the Society is alleging that a child or the children are in need of protection due to physical harm or a risk of physical harm, the following principles have been applied:

a. The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: see Jewish Family & Child Service v. K. (R.), 2008 ONCJ 774, at para. 28, affirmed at Jewish Family & Child Service v. K. (R.), 2009 ONCA 903;

b. Physical harm caused by neglect or error in judgment is still physical harm. However, it must be more than trifling physical harm: see Children’s Aid Society of Niagara Region v. P. (T.) (2003), 2003 CanLII 2397 (ON SC), 35 R.F.L. (5th) 290 (Ont. S.C.), at para. 60; Children’s Aid Society of Rainy River (District) v. B. (C.), 2006 ONCJ 458, at para. 17;

c. Harm caused by neglect or error in judgment comes within the finding: see Children’s Aid Society of Niagara Region v. P. (T.), above;

d. The risk of harm must be real and likely, not speculative: see Children’s Aid Society of Rainy River (District) v. B. (C.), at para. 19; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), 2000 CarswellOnt 2156 (Ont. S.C.), at para. 8;

e. A child may be at risk even if the conduct is not directed specifically towards that child: see Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1995), 9 O.F.L.R. 165, (Ont. Prov. Div.);

f. Limited capacity of the parents may lead to harm or risk or harm if there is an inability to sufficiently acquire or improve parenting skills: see Children’s Aid Society of Hamilton v. O. (E.), 2009 CanLII 72087 (ON SC), 2009 CarswellOnt 8125 (S.C.).

[89] The Society alleges and the OCL supports the conclusion that there is a risk that the children will likely suffer physical harm due to the following issues:

a. The father’s ongoing housing instability;

b. The father’s mental health issues and lack of treatment for same; and

c. The father’s use of substances, including alcohol, and lack of treatment.

[90] As is set out below, the evidence in relation to these issues is overlapping. Having reviewed the evidence carefully, I find that the children E., O., and S., are at risk of physical harm as set out in section 74(2)(b)(ii), arising from a pattern of neglect in caring for, providing for, supervising or protecting the children, for the following reasons.

Housing Instability

[91] The father has experienced persistent housing instability since 2018, caused in part by his pattern of hoarding or accumulating items both inside and outside of the homes in which he resides, and his behaviour as a tenant. He has been unable to maintain his residences in a manner that is safe and appropriate for the children. The following serve as examples:

a. The father resided at C. Street for two years between 2016 and 2018. While at C. Street, the evidence is that he engaged in hoarding behaviour, accumulating countless items stored both inside and outside the home. While the father characterized this as “collecting”, the evidence is that he collected much more than he sold. At C. Street, his behaviour led to a Notice of Eviction in July 2018. The father blamed his difficulties at this location on a neighbour, a by-law officer, who, the father agreed, had something against him personally. When asked during trial why he had to leave C. Street, he said that he was being noisy and loud and that the landlord did not like how he made money.

b. After residing with the paternal grandmother from July 2018 to January 2019, the father moved into a housing unit at V. Road. When he obtained this housing, it was empty and clean, albeit small and old. By March 2019, when the children had returned to his care, the worker already noted concerns about the state of the home. The backyard was full of BBQ’s, furniture, bicycles, a bathtub, appliances, and “waste debris,” and the interior of the home was very cluttered. By May 23, 2019, the date of the father’s overdose, the home was in such poor condition that he enlisted the help of four to five friends to clean it before the anticipated arrival of the maternal aunt from Alberta. By May 2019, by-law officers again became involved, as did the Regional Municipality. A Notice to End Tenancy was issued on April 12, 2019, due in part to these issues and also to complaints regarding loud music. A further Notice to End Tenancy was issued on June 3, 2019, this time for non-payment of rent.

c. When the father resided with the paternal grandmother, the collecting/ hoarding behaviours had also affected her home. In the fall of 2018, while the father and the children were staying with the paternal grandmother, the fire department became involved due to concerns regarding combustibles in the home and the children’s sleeping arrangements. In October 2020, when the father was again residing with the paternal grandmother, by-law officers again became involved due to items around the exterior of her home.

d. Throughout the trial there was reference to the loud music the father plays at his residences. He stated that this was not really a concern because his children could sleep through it. He explained that he enjoys loud music and said that “you should do what you enjoy.” The father did not recognize the extent to which persistent concerns about loud music contributed to his housing instability, as described above. He similarly found himself evicted from his hotel in Alberta in the fall of 2020, in part due to concerns about loud music. This impacted his access with his children, which was the purpose of the Alberta trip.

e. The father’s residence was unsettled, at best, from the fall of 2019 to October 2020. He testified that during this period he lived with the paternal grandmother. The paternal grandmother testified that the father stayed with her “off and on” as well as with the paternal uncle N. during this time. Notwithstanding wanting the children to return to his care, he did not establish a stable residence for himself during this period.

f. Even during the trial, the instability continued. The father testified that if the children were returned to him, he would be able to live at a cottage at Turkey Point, made available to him by long time friends of the paternal grandmother. When he testified, this appeared to be a very fresh plan. Several days into the trial, the court was advised that this plan was no longer being presented.

g. At trial, it became apparent that the availability of the paternal grandmother’s home at L. Court was also unsettled (not just for the father, but also for the paternal grandmother and paternal aunt). The paternal grandmother testified that her rent was $3,000 in arrears, that neither the father nor the paternal aunt were contributing to the rent payments, that she had been asked to leave (again) by the landlord, that she had no guarantee as to the number of people who would be permitted to reside in the home, and that she was not certain how much longer she could stay at L. Court.

h. The lack of stable, secure, appropriate housing, and the ability to maintain that housing at a basic level, presents a risk of physical harm to the children.

Mental Health Concerns and Behaviours (including hoarding), and Lack of Treatment

[92] The father has demonstrated mental health challenges affecting his ability to care for the children as well as a lack of consistent follow through in obtaining appropriate supports. He has been unable to address the underlying issues which appear to contribute to the housing instability described above. The issues have been ongoing since the Society became involved.

a. The paternal grandmother testified that as early as 2017, the father did not seem like himself, and she was worried about him. The worker, Ms. Tatton, told the father in July 2018 that she was worried about his mental health. The father acknowledged in his testimony that “most” of his family has expressed concerns about his mental health.

b. In August of 2018, the mother told Ms. Tatton that she and the children planned to live apart from the father for a period (without ending their relationship) because the father needed help and she suspected that he was using drugs. I find this to be a reliable statement as it is consistent with statements made by the paternal grandmother at approximately the same time that she had been trying to get help for the father for mental health issues. The paternal grandmother stated that she had him in the car one day to seek help, but he refused to go. She agreed at trial that during this time she had concerns about the father regarding the state of the home and “probably” about alcohol use. She wanted him to see a doctor.

c. The father’s hoarding appears to have been a consequence of mental health issues. The behaviour persisted and contributed to his housing instability. While the father testified that his “collecting” “went down big time” after he moved to V. Road, the workers’ evidence was that the condition of the home was poor and that by-law officers continued to be involved. The father acknowledged that his whole family thinks what he does is “not normal.” In April 2019, Society worker Ms. Desgroseilliers observed that the basement of the father’s home was completely full, from floor to ceiling (he said he was storing items for a friend), not passable, and that there were narrow walkways in the home. She also observed bug sprays and ant killer in the kitchen. The paternal grandmother testified that the father had too many possessions while he lived at V. Road.

d. Although there is evidence that the father was intermittently able to make improvements, they were not sustained. The paternal grandmother testified that even now, he has continued “collecting” since October 2020, although she said she would not call it “hoarding.”

e. The father was on occasion unable to manage his emotions and behaviour when angry. For example, in May of 2018 when the Society became involved, the father was on the porch roof yelling at by-law officers. Again, in May 2019, when by-law officers attended the home on V. Road, the worker’s evidence was that the father was uncooperative and yelling, refusing to allow anyone in or around the home. The assault on the child A., which is discussed further below, must also be seen as a failure to manage emotion and anger.

f. The father testified that he obtained some mental health support, notably counselling with Louise Burns of H7G. Indeed, his statements during the trial about his openness to counselling were generally positive and receptive. However, although the father stated that he had more than five sessions with Ms. Burns, I am unable to accept that, given the following: the Society workers’ evidence that in total, the Society received invoices for five sessions; the father’s choice not to call Ms. Burns to testify; and the false statements made by the father about other services obtained, as discussed above. The Society obtained a letter from K-W Counselling during the trial that confirmed that the father had not obtained treatment through them, notwithstanding his claims.

g. While it was ultimately confirmed that the father was seen by a psychiatrist, it does not appear that he received ongoing services from that psychiatrist which would assist in addressing his underlying mental health issues. Letters from Dr. Surapaneni confirmed two consultations, one in March 2020 and a follow up in July 2020. The letter dated March 8, 2020 suggested that the father was experiencing grief from the loss of his wife and that he did not have the capacity to look after the children. The follow up note dated July 6, 2020 again suggested that the father did not have a “mental disorder”, but again opined that his capacity to look after the children was still not adequate. I have accepted the letters as proof that the father consulted Dr. Surapaneni on two occasions, but place no weight on the opinions therein about the father’s parenting capacity as Dr. Surapaneni was not called to testify and was not qualified as an expert in this trial.

Substance Use Concerns and Lack of Treatment

[93] Concerns about substance use substantially predate the Society’s involvement, and there is little evidence available regarding treatment for this issue. While some evidence is quite dated, it provides context.

a. The father was convicted of two instances of driving while impaired many years ago, once in Alberta and once in Ontario. While in and of itself this would not ground a protection finding, this illustrates that his misuse of alcohol is not new.

b. In 2018, the mother expressed concerns to the worker Ms. Persad about the father’s mental health and alcohol use. The mother told Ms. Persad that the father was a hoarder. I find this to be a reliable statement given that the father confirmed in his own evidence that the mother was concerned about his alcohol use and continued collecting of items. He said that if it concerned her, it concerned him, although he did not believe he had a problem with alcohol. He described his alcohol use when the mother was alive as “a six pack or a twelve pack on weekends or during the week for a game.” This is not an insignificant amount of alcohol to consume in one sitting.

c. In August 2018, the mother advised Ms. Tatton that she suspected that the father was using drugs. At about the same time, the father told Ms. Tatton that he had used cocaine in the past but was now sober and had been for 13 years.

d. In November 2019, the father told Ms. Tatton that he had been drinking “more” since the mother’s death. At that time the father stated that he did not believe alcohol was a problem for him. The father also testified that the child E. worried about his drinking and did not like seeing him drink. The paternal grandmother was concerned about the father’s alcohol use and said the father was not acting like himself.

e. Throughout the trial, a number of witnesses referred to the “accident” on May 23, 2019 when the father overdosed. In fact, he testified that he took a pill which he thought would give him energy, which he “assumed” when he took it, contained illegal drugs. This is difficult to characterize as an accident. In any event, it led to him becoming unconscious, one of his children being unable to wake him in the morning, the attendance of emergency workers at the home, and his hospitalization. This was mere months after the children’s mother had passed away and the children had already sustained an enormous loss. While the father was very remorseful about this incident at trial, it nevertheless reflected a significant lapse in judgment and a failure to act protectively of his children at a vulnerable period in their lives.

f. The paternal grandmother attended the hospital following the father’s overdose on May 23, 2019 and told hospital staff that she had been worried about the father’s substance use for about six months. On the basis of her statements, the Consultation Report described the father as a “known user”. The hospital test revealed that the pill taken by the father contained four illegal substances, including cocaine. The hospital speculated that the pill was laced with fentanyl. When asked whether she had suspected that the father had been using drugs since the mother’s death, the paternal grandmother responded, “It was obvious.”

g. While the paternal grandmother tended not to express understanding of the child protection concerns that led to the Society’s involvement, in July 2019 she told the worker, Ms. Desgroseilliers, that she wanted the father to get help with his substance abuse and possible mental health issues. She said that she had tried to get him help and was feeling discouraged.

h. The father’s use of alcohol negatively affected his trip to Alberta in October 2020, the purpose of which was for him to spend time with the children. The maternal aunt said that while the father did not present as intoxicated during his access with the children, on at least two occasions he smelled of alcohol when he took his mask off. During two of the visits she found him to be less engaged with the children. The maternal aunt is an addiction counsellor and I find her evidence on this issue convincing. The father stated that perhaps he had spilled alcohol on his clothes or had not brush his teeth. Alcohol may also have been a factor in his eviction from the hotel at which he was staying during that visit to Alberta, although the father denied same.

i. While the father took several modest steps towards obtaining treatment, such as getting on the waiting list for a residential program in Simcoe, Ontario, and seeing the psychiatrist on two occasions (see above), he testified that he did not think he needed that treatment (“not to the extent of a three month program”). His evidence of having attended programming through Grand River Hospital for a “detox” program and a “withdrawal management” program was shown to be false.

Assault against the Child A., August 2018

[94] As seen above, on August 23, 2018, there was an altercation between the child A., then 15 years old, and the father. There was an argument and the father slapped A. across the face. The father states that he did so in an effort to protect the mother from A.

[95] The incident resulted in charges, to which the father pled guilty. The paternal grandmother stated that the father pleading guilty was a family decision.

[96] The father returned to the paternal grandmother’s home once his conditions were lifted and the child A. went into foster care for a period of time.

[97] The father expressed regret and remorse during the trial, while at the same time explaining that he was trying to defend the mother. He stated that there had been challenges with the child A. for some time, including in Alberta, before the move to Ontario in 2016. The paternal grandmother blamed A. and appeared to continue to do so as at the trial.

[98] Whatever the surrounding circumstances, the fact is that the father was convicted of assault against a 15-year-old child. This suggests at a minimum that there is a risk of the father using inappropriate discipline with children, as he has clearly done so in the past. While there was no suggestion during the trial that the father had physically hurt the children who are now the subject of this proceeding, in my view this conviction forms part of the factual background contributing to the risk of physical harm to the children.

Conclusion regarding Finding

[99] On the evidence, and having regard to (but not grounded on) the father’s acknowledgment that a finding is appropriate, I conclude that the children are in need of protection under s. 74(2)(b)(ii) of the CYFSA. The father’s behaviour in causing persistent housing instability, his mental health and substance use challenges, and his inadequate steps to address those concerns, create a risk of physical harm to the children. That risk is real and likely, and not speculative.

D. DISPOSITION

[100] Having made a protection finding, the court must determine the appropriate disposition which will protect the children from the risk of harm and is in their best interests.

[101] The father seeks placement of the children under terms of supervision, either with himself, with the paternal grandmother, or the paternal aunt. While at the commencement of trial the Society sought an Order for extended Society care, at the end of the trial the Society modified its position and sought a less intrusive Order, namely an Order placing the children in the custody of the maternal aunt.

The Legislative Framework

[102] As stated, the children in this case are First Nations children, and the evidence is that they have a connection to the Samson Cree First Nation through their mother. As such, this case is governed both by federal and provincial legislation.

[103] At both levels of government, there is recognition that in the context of the colonial history of Canada, Children’s Aid Societies and the courts must approach child welfare differently when working with Indigenous families, specifically “with a view to recognizing the importance of continuity of culture and of family,” and in the spirit of reconciliation: see Kina Gbezhgomi Child and Family Services v. M.A., 2020 ONCJ 414, at paras. 42 and 43. This is reflected in both the federal legislation and the CYFSA.

The Federal Legislation: An Act Respecting First Nations, Inuit, and Métis Children Youth and Families

[104] One of the purposes of the federal legislation, which came into force on January 1, 2020, is to set out principles applicable, at a national level, for the provision of child and family services in relation to Indigenous peoples: see s. 8.

[105] The federal legislation is to be interpreted in accordance with the best interests of the child, the principle of cultural continuity for Indigenous children, and in accordance with the principle of substantive equality: see s. 9.

[106] The federal legislation provides a definition of best interests of the child which is similar to the definition in the CYFSA, but adds two additional considerations: any family violence and its impact on the child (s. 9(3)(g)), and any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child (s. 9(3)(h)). This interplay has been described as an “augmented best interests test”: see C.A.S. v. E.B., S.L., and A.W., 2020 ONSC 6462.

[107] Section 16(1) of the federal legislation also sets out the following priority of placement of children in the child welfare context:

a. with one of the child’s parents;

b. with another adult member of the child’s family;

c. with another adult member who belongs to the same Indigenous group, community, or people as the child;

d. with an adult who belongs to an Indigenous group, community, or people other than the one to which the child belongs; or

e. with any other adult.

[108] The federal legislation directs that in determining a placement, consideration must be given to whether placement with or near siblings would be in the child’s best interests: see s. 16(2).

[109] Section 16(3) provides that where a child is not placed with a parent or a family member within the meaning of ss. 16(1)(a) and (b), there must be ongoing reassessment.

The CYFSA

[110] Recognition of the unique circumstances of First Nations children and the positive duty to assist them in ways that promote cultural continuity is also front and centre in the CYFSA. This can be seen both in the preamble to the legislation and in the remedial sections.

[111] The preamble of the CYFSA reads in part as follows:

First Nations, Inuit, and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities, and nations.

Honouring the connection between First Nations, Inuit, and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit, and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages, and traditions.

Orders Available under Sections 101 and 102 of the CYFSA

[112] Sections 101 and 102 of the CYFSA set out the Orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court Order is necessary to protect the child in the future.

[113] Section 101(1) provides the option of a supervision Order for a period between three and twelve months.

[114] Under section 101(2), the court must consider the efforts of the Society to assist the child before the intervention. Section 101(3) provides that less disruptive placements are preferred.

[115] If the court finds that an Order under s. 102 rather than an Order under s. 101(1) would be in the child’s best interests, the court may make an Order for custody, with the consent of the proposed custodial parent. Under s. 102, the court may make any Order respecting custody that could be made under s. 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 [“CLRA”].

Best Interests of the Child

[116] The governing factor when considering the placement of a child is the child’s best interests. Section 74(3) of the CYFSA provides that in determining best interests, the court must do the following:

a. consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

b. in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

c. consider any other circumstance of the case that the person considers relevant, including,

i. the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

ii. the child’s physical, mental and emotional level of development,

iii. the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

iv. the child’s cultural and linguistic heritage,

v. the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

vi. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

vii. the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

viii. the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent

ix. the effects on the child of delay in the disposition of the case,

x. the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

xi. the degree of risk, if any, that justified the finding that the child is in need of protection.

[117] As seen, both the children’s views and wishes, as well as preserving the identity and connection to community of First Nations children, are given particular priority in the best interests analysis under the CYFSA.

Children’s Views and Preferences

[118] While children’s views and preferences were, under the predecessor legislation, one of 13 factors for consideration by a court in determining best interests, under the current legislation, not only are children’s views prioritized in the first sentence of the preamble (“The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.”), but they are given primacy in s. 74(3): see Catholic Children’s Aid Society of Toronto v. T.T.L., 2018 ONCJ 403, at paras. 151-152.

[119] The primacy of the children’s views and preferences is subject to those views being ascertainable. The views are to be considered in the context of the age and maturity of the child: see Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 52. The right to be heard is not tantamount to the right of children to decide. The principle is “voice not choice.”

Preserving Cultural Identity and Connection to Community

[120] Also front and centre under s. 74(3)(b) is the importance of preserving First Nations children’s cultural identity and connection to community. This recognizes the history of First Nations persons in Canada, the legacy of colonialism, and the importance of reconciliation: see Children’s Aid Society of Ottawa v. M.G., 2020 ONSC 79, at para. 126; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 24 R.F.L. (8th) 32, at paras. 56-57; and Bruce Grey Child and Family Services v. A.B.-C., 2018 ONCJ 516, at paras. 37-39.

[121] This is not to suggest that other aspects of a child’s history or identity do not matter or should also not be recognized. Under s. 74(3)(c)(iii), other aspects of a child’s identity, including ancestry and ethnic origin, must be considered. Further, under s. 74(c)(iv), a child’s cultural and linguistic heritage are to be considered.

[122] A child may of course – consistent with the Canadian experience of immigration over centuries – have multiple ethnic and cultural roots and a connection to more than one community. However, in light of the Canadian history of colonization and suppression of First Nations culture and language across those same centuries, the CYFSA accords specific importance, in the context of reconciliation, to preserving and fostering the connection of First Nations children to their First Nations communities.

Sibling Relationships

[123] Section 74(3)(vi) requires that in determining best interests, children’s relationships with a parent, sibling, relative or other family member be considered. This section is of particular relevance given the children’s relationships with their sister A. The children’s relationships with their extended paternal family would also be considered under this section.

Application

Efforts of the Society to Assist

[124] Under s. 101(2), the court must consider the efforts that have been made by the Society to assist the child before the intervention.

[125] I have little difficulty concluding that at least until March 2020, the Society made significant efforts to assist the father in improving his circumstances and ability to care for the children. Unfortunately, this did not alleviate the protection concerns in any appreciable way.

[126] While the father stated that he did not have enough support from the Society before the first removal of the children on December 12, 2018, and that he wanted help getting counselling for the children, the evidence of Ms. Tatton was that she discussed counselling options for them before they were brought into care. She had also recommended that the father seek assistance from his doctor in relation to hoarding, his pattern of not sleeping, and suspected ADHD. In January 2019, at a family meeting, it was suggested that the father attend the House of Friendship for an assessment regarding substance use issues. He did attend a brief session there.

[127] The father testified that for the period the children were placed back with him (March to May 2019), he felt he had the support he needed: his family, friends, and the Society. Workers were attending the home regularly to assist, and the Society provided food vouchers, transportation, and support that allowed the father to take the children to events. The father had significant support during this period of time.

[128] The Society encouraged the father to pursue grief counselling with Louise Burns, and the evidence is that he had five sessions with her. Workers regularly had discussions with him about services that could assist.

[129] In October 2020, while the children were in Alberta with the maternal aunt, the Society funded the father’s travel to Alberta to afford him the opportunity to have in-person access with the children. I have never seen this in any other case, and it was clearly intended to keep the father connected with the children.

[130] During its involvement, the evidence is that the Society recommended multiple services, including a mental health assessment, addictions services, and counselling. The father often expressed openness to participating, but did not follow through consistently. He told a worker in November 2019 that he was “too busy” to pursue treatment. The children were not living with him at that time.

[131] Although the paternal grandmother testified the Society did “nothing” for the father, she was unable to state what should have been done differently other than that the children should not have been apprehended. While she stated that the Society should have assisted with housing, the father had housing while the children were temporarily placed back with him. The evidence is that he lost his housing due to his own actions. The paternal grandmother acknowledged that the father had extensive family support and that Society workers had been attempting to work with the father.

[132] The only time period during which, in my view, the Society’s support tapered off was after the onset of the COVID-19 pandemic and related restrictions, from March 2020 onwards. This coincided with the transition to a new worker, Ms. Parent, and it seems to have taken until about June 2020 for her and the father to connect. During this period, it also appears that the Society’s approach shifted to telling the father he could contact them if he needed support, rather than continuing to proactively connect him with the services he would need in order to change his circumstances sufficiently to resume care of the children.

Less Disruptive Alternatives

[133] As previously stated, under the CYFSA, less disruptive alternatives are preferred where those alternatives will serve to protect the children.

[134] At the outset of trial, the Society sought an Order for extended Society care. Counsel stated that the intention would be to bring a status review application after an extended Society care Order, within which it would seek custody to the maternal aunt. The court was told that this approach would maximize funding and resources available to the maternal aunt to raise the children. The court indicated that it would require evidence regarding the funding issue, given the gravity and intrusiveness of an Extended Society Care Order. There were discussions about calling evidence on this point following the father’s case, with an opportunity for responding witnesses if necessary.

[135] Instead, towards the conclusion of the trial, the Society amended its “Order Sought” to seek a custody Order rather than an Order for extended Society care, evidently having satisfied itself that adequate funding would be available to the maternal aunt. It would have been preferable if this decision had been made before the commencement of the trial as it may have changed the opportunities for productive settlement discussions before trial.

[136] The father submits that a supervision Order should be preferred over a custody Order as it is less intrusive, and, in the words of the father’s counsel in a sense less “final.” All three of the options he has put before the court are in the form of a supervision Order.

[137] I accept the evidence of Ms. Ratcliffe, a knowledgeable and experienced kinship assessor retained by the Alberta Society to conduct an assessment of the maternal aunt, that the concept of a supervision Order “with kin” is not recognized in Alberta. While I will comment on the substantive aspects of the four plans being proposed below, I accept that placement with the maternal aunt in the context of this case requires a custody Order and that practically speaking, a supervision Order with her is not available as a “less disruptive” alternative.

Children’s Views and Wishes

[138] As set out above, children’s views and preferences, where they can be ascertained, are front and centre in the best interests’ analysis and are to be given due weight in accordance with the age and maturity of the children.

[139] Counsel agreed at the outset of the case that there would be no objection to the admission of statements made by the children to witnesses testifying in the trial, subject, of course, to the court’s determination of weight. There was no objection to the OCL counsel relaying her understanding of the children’s views and preferences from the counsel table.

[140] The court is aware that E. is eleven years of age, O. is ten years of age, and S. just turned six. Apart from hearing that S. is young and goes from being shy to talkative depending on the circumstances, the court heard little evidence that spoke to the children’s respective levels of maturity. Minimal weight can be given to S.’s views and preferences in light of her very young age, although her views appear to be consistent with those of her siblings.

[141] However, in light of the two older children’s ages and the consistency of their views over time, communicated to a range of individuals, I find that their views are “ascertainable.”

[142] In summary, the court heard that the children wish to live with their father again one day, but only after he has received help. They are currently content living with their maternal aunt, who stated that “they all want to live here.” The children’s statements made to their lawyer, their maternal aunt, and the Society workers in the proceeding have been consistent. While the child O. initially wanted to return to his father’s care, his maternal aunt testified that O. has become “less defensive of his father,” and like his sister E., currently recognizes that his father needs to get help. None of the children are asking to return to their father’s care at this time, or to be placed with members of the paternal family in Ontario.

Sibling Relationship

[143] As seen above, both the federal legislation and the CYFSA recognize the importance of sibling relationships to the children’s best interests.

[144] The evidence is clear that the three children love their older sister A. and have an excellent relationship with her. They were consistently excited to see her and spend time with her. It appears that the sibling relationship is important to A. as well. This must be factored into the overall determination of disposition in this matter.

Access to Date

[145] Access by the children to the father has gone through a number of phases since they were initially removed in December 2018, again in May 2019, and since the children travelled to Alberta in July 2020, where they have remained.

[146] While the children were in Ontario and placed in foster care, the father attended most of his access at the Society, although by his own admission he was frequently late (he was often travelling to those visits by bus or bicycle). There was also access arranged to take place at his mother’s home. Since the children have been in Alberta, the access has been predominantly virtual, save and except for the face-to-face access visits in September 2020 when the Society funded the father’s travel to see the children.

[147] The father loves the children and this is clear on access visits. Workers testified and set out in their affidavits that he can be nurturing with the children, that he is loving, and that he tries to balance his time between them.

[148] As set out above, the father’s access time with the children in September 2020 was marred by his late arrival due to missing a flight and being evicted from his hotel in the middle of the night. While the children enjoyed seeing him, the maternal aunt stated that he seemed distracted some of the time and there was evidence that he had been drinking alcohol. Still, it appears that aspects of the visit went well.

[149] The maternal aunt testified that the children look forward to speaking with their father, and that they are excited to show him things during the video calls. The maternal aunt stated that sometimes the paternal extended family participates in the calls and that the children enjoy this.

Option # 1: Placement with the Father under Supervision

[150] The father’s first choice is that the court place the children with him under a supervision Order.

[151] In his evidence, he described his own upbringing and relationship with his family in positive terms. He stated that he has learned a lot from his mother, that he has a good relationship with his siblings, and that he and his sister, the paternal aunt, try to help one another. When asked about his cultural background, he stated that his father was Ukrainian and that he used to go to a Ukrainian church with his grandparents.

[152] The father completed grade ten and also completed a course in CMC machinery. He likes to work and to help people. The father states that he currently does a range of side jobs to earn income – roofing, landscaping, framing, for example. He said that his time is flexible and if the children were placed with him, he would be available to care for them.

[153] The father states that a supervision Order with him will adequately protect the children, and that he is prepared to follow a wide range of terms of supervision, including restrictions on alcohol consumption, and terms requiring cooperation with the Society. There is no question he genuinely wants to provide a safe and loving home to his children.

[154] The father’s plan has the following positive attributes:

a. The father loves his children very much.

b. The father states that he is open to programming with respect to substance use and mental health. He says there is room for “everyone” to improve themselves.

c. A placement of the children with their father would allow them to have regular contact with their sibling A., who resides in Cambridge, Ontario with her partner and baby, G.

d. A placement with the father would allow frequent contact with the paternal extended family, including the paternal grandmother, the paternal aunts and uncles, and cousins.

e. The father states that he is willing to work with community resources to find alternate housing for himself and the children.

f. The father states that he is willing to take steps to promote the children’s identity as First Nations children and their connection to their heritage. I accept that the father regards the children as Indigenous. He has sought services and support from H7G, an impressive local organization offering programs and support for Indigenous persons and caregivers for Indigenous children. He made extensive efforts, when the children’s mother was dying, to respect her cultural background by contacting H7G for advice on what steps to take at that time.

g. The father has a good relationship with the maternal aunt and stated that he is willing to communicate with her to support the children’s First Nations heritage. When asked whether he had concerns about placement of the children with her, apart from the distance between Ontario and Alberta, he said that she is a smart, stable, and a resourceful woman. It is a strength that he is able to recognize this even in the midst of this litigation.

[155] Notwithstanding the foregoing, I have the following serious concerns about the father’s plan, which I find cannot adequately protect the children:

a. I have already set out my concerns about the father’s housing situation, which has been unstable since at least 2018. His current plan is to have the children reside with him at the paternal grandmother’s home until other housing can be obtained. As seen, that housing is unstable, the paternal grandmother is in rental arrears, and she has been asked by the landlord to vacate the property. Placing the children at L. Court would result in eight people residing in the home. The paternal grandmother was previously advised that there should only be three people residing in the home and she candidly testified that she had no assurance from the landlord that it was acceptable to have more people move in.

b. While the father believes that he could obtain access to what he called “native housing” if the children were in his care, the representative of H7G testified that the agency is limited to advocating with other organizations and that her organization does not make housing decisions itself. Alternate housing is speculative.

c. Over and above the instability of housing, the evidence is that the father has experienced significant challenges maintaining his homes (C. Street, V. Road, and while with his mother at L. Court) in a consistently safe and acceptable state. Hoarding has been a concern in each location and by-law officers have been involved at each address. The father received eviction notices both at C. Street and V. Road. The evidence was that the father stayed with the paternal grandmother off and on, staying there more regularly from October 2020. It was in October 2020 that by-law officers again became involved at her address.

d. Even as at the trial, the father did not show insight into why the children were removed or what the child protection concerns are. He continued to suggest, in relation to the first removal, that the children were apprehended because he did not allow them to spend an overnight with A.’s foster parent in December 2018. He stated that the condition of the V. Road residence was appropriate. In reference to why he put himself on the waiting list for a treatment program in Simcoe, he stated that it was what the CAS wanted for him to get his children back. While he said he agreed with the second apprehension in May of 2019 following the overdose, this did not appear to extend to an understanding of the need to address underlying substance use issues.

e. As I have set out above, the father’s inability to regulate his behaviour is a concern in that it contributes to his housing instability, and has negatively affected his time with his children. Here, I am referring to the persistent issues with loud music that have contributed to the eviction notices.

f. The father also continues to consume alcohol in a manner that affects his parenting, and he has not taken adequate steps to address this issue. Most recently, alcohol consumption during the week he was in Alberta in October 2020 affected the quality of his time with his children, and may have contributed to his eviction from the hotel. That eviction, in turn, rendered him without shelter overnight. He then attended access with his children the next day in a compromised state.

g. I have already described the father’s lack of follow through with respect to treatment for mental health issues and substance use. While he has taken limited steps, he has not, in my view, adequately addressed this issue.

h. While I do not doubt the father’s good intentions in terms of wanting to follow the terms of a supervision Order, I have doubts about his current ability to do so. For example, even being well aware that substance use is one of the reasons why the Society is involved, and knowing and acknowledging in evidence that his daughter E. is concerned about him drinking alcohol, he continued to do so even when in Alberta for access in October 2020.

i. I am concerned about the father’s repeated lack of candour with the court and in my view that bodes poorly for the success of a supervision Order. I refer both to his statements in affidavit form in February 2019 in support of his motion for return of the children (that he had “never” used illegal drugs), which he later admitted were not true, and to the documents about substance abuse treatment which I have found were more likely than not falsified. In this context, it is difficult to take at face value the father’s statements that he will follow a supervision Order.

j. The father did not follow all of the terms of the temporary supervision Order, in effect from March to May 2019. In particular, he did not “follow all recommendations for further assessment and/or treatment” (in relation to mental health symptoms and substance abuse); he did not maintain a safe and hygienic home; and he appears more likely than not to have permitted other individuals to stay at the home without the prior written approval of the Society.

k. Finally, I have concerns about whether the father is focussed on the children’s needs or on his own. On the recent motion regarding the form of access pending the outcome of trial, the father took the position that access should be in person, which would have required the return of the children to Ontario for placement in a foster home near London, Ontario. While I understand that the father misses the children, and do not fault him for that, his position was effectively that the children should leave the home of the maternal aunt where they had been staying since July 2020, (and where they are enrolled in school) to live with strangers some 100 km from Kitchener-Waterloo, to allow for face-to-face access with him pending the outcome of this trial. His position was parent-focussed, not child-focussed.

[156] The father is currently staying with the paternal grandmother. There was evidence during the trial that there are no restrictions placed by the Society on the father’s contact with the paternal aunt’s children. Previously the child A. and her young son G. also stayed there, also with no restrictions. The father’s counsel argues that this shows that the father could parent his children at this time and that he does not pose a risk. I do not accept this submission for reasons including the following:

a. When the Society briefly became involved with the paternal aunt after the apprehension of the father’s children (December 2018/ January 2019), the father had just obtained housing at V. Road, and was not living there after January 3, 2019. When the kinship assessment was underway in relation to the paternal aunt (spring 2020), the father was staying there only “on and off.” Similarly, when the Society briefly became involved when A. was pregnant with G., the Society was advised that the father did not live there. There would have been little reason for the Society to put restrictions on the father’s presence or involvement.

b. The paternal aunt testified that she does not leave the father in a caregiving role with her children. If she needs assistance with her children, it is the paternal grandmother who helps. The paternal grandmother described the father’s role in relation to the children as “like an uncle,” rather than as a caregiver.

c. There is a significant difference between the father residing in the paternal grandmother’s home and having contact with the paternal aunt’s children and the father having the responsibility of caring for his own children full-time.

Option # 2: Placement with the Paternal Grandmother under Supervision

[157] The father’s second choice is placement of the children with the paternal grandmother under supervision. He states that he would either continue to reside with her, or not, depending on the court’s requirements. At this time, the placement would be at L. Court, where the paternal grandmother currently resides with the paternal aunt and her two children.

[158] Angela Pilarski conducted a kinship assessment in the fall of 2019 in relation to the paternal grandmother. She did not prepare a final home-study report, but her affidavit was filed in this proceeding and she testified. She held five meetings with the paternal grandmother. None were held at L. Court as the paternal grandmother stated there was “no point” as that is not where she would be living if the children were placed with her. As seen, she is still living there.

[159] Ms. Pilarski identified a number of positive aspects to the paternal grandmother’s approach to parenting. She stated that the paternal grandmother was loving and honest. When asked whether the paternal grandmother gave appropriate responses regarding how she would raise the children, Ms. Pilarski confirmed that she did.

[160] Having said that, Ms. Pilarski found that the paternal grandmother did not show insight into the father’s struggles or the child protection concerns. Only after several meetings did she acknowledge the concern about drugs, hoarding, and the need for the father to attend counselling. When she did, Ms. Pilarski stated that the paternal grandmother seemed to have been pushed to recognize these concerns, and that the sense of the discussion was “fine, there are issues,” as opposed to genuine insight.

[161] After the fourth meeting, Ms. Pilarski attended an internal meeting with the Society to discuss additional issues to be raised with the paternal grandmother, primarily related to the children’s First Nations heritage and their cultural needs. Ms. Pilarski then met for a fifth time with the paternal grandmother. Based on the discussion, during which Ms. Pilarski found the paternal grandmother to be angry and emotional, Ms. Pilarski concluded that the paternal grandmother did not appreciate the children’s cultural needs as First Nations children.

[162] Ultimately, the kinship assessment of the paternal grandmother was not approved. Ms. Pilarski stated that she had concerns regarding the paternal grandmother’s housing and serious concerns regarding her willingness to foster connection with the children’s First Nations community. The kinship assessment is a factor in this court’s decision about this plan, but is not determinative.

[163] Having reviewed all of the evidence in this trial, I find that there are positive attributes to the paternal grandmother’s plan. These include the following:

a. The paternal grandmother loves the children. She has a bustling family and values close relationships with her children and her grandchildren.

b. The paternal grandmother has a longstanding relationship with these grandchildren, having spent periods of time with them in Alberta when they were younger, and having had the children live with her at various points in time, with the mother, the father, or both parents.

c. Placement of the children with the paternal grandmother would allow regular in person contact between the children and their sister A., as well as with A.’s baby.

d. Placement of the children with paternal grandmother would allow ongoing in-person connection with numerous members of the paternal extended family, including the paternal aunts and uncles, as well as cousins.

e. Placement of the children with the paternal grandmother would, subject to the housing issue, allow the children to resume attendance at a school they attended previously.

f. The paternal grandmother’s stated approach to discipline is appropriate. She told Ms. Pilarski that she would not use physical discipline with the children.

g. There are no concerns arising from the paternal grandmother’s criminal record check.

h. The paternal grandmother states that she is willing to work with community services to find stable housing. She has sought out services and support through H7G, and appears willing to continue to do so. She described H7G as “great” in terms of helping the father and said that they were also helpful with the child A. and the child O. It is a strength that she is prepared to seek out services through this agency.

[164] Notwithstanding the positive aspects just reviewed, I have the following serious concerns about the placement of the children with the paternal grandmother, and I find that this plan cannot adequately protect the children:

a. I have already set out the concerns in terms of instability of the paternal grandmother’s housing and I will not repeat those comments here. She was candid about the lack of certainty about how long she can continue to stay in her current residence and whether she can have eight persons reside there.

b. The paternal grandmother stated that if the children were to be placed with her, two residences would be needed. Although she hoped that she would receive some priority for other housing, this was speculative.

c. The paternal grandmother showed limited insight into the challenges faced by the father. I observed the same pattern during the trial that Ms. Pilarski did during the kinship assessment. The paternal grandmother would make general statements about the lack of protection concerns, stating, for example, that the father’s mental health is “fine.” Only when confronted with her own earlier statements, or with glaring facts such as the father’s overdose, would she begrudgingly acknowledge the concerns. This is a problem because in my view it would compromise her ability to cooperate with the Society and to follow the supervision terms.

d. During the trial, the paternal grandmother continued to blame the child A. for the involvement of the Society (due to the assault charge against the father in 2018), as she had done during the assessment.

e. I find that the paternal grandmother failed to act protectively regarding these children in the months leading up to the father’s hospitalization. She acknowledged at trial that she had told the hospital that she was worried about the father’s drug use over a six-month period. For two months of that period the children were in the father’s care. Yet, the paternal grandmother did not contact or in any way alert the Society. To the contrary, she stated she would not “converse with them about that.”

f. Even during this trial, the paternal grandmother continued to defend the father, stating that his overdose was due to too much pressure and the Society having taken his children, which prevented him from overcoming his grief. She clearly still blamed the Society for her son’s difficulties, stating “That’s how I feel today.”

g. The paternal grandmother’s working relationship with the agency is very strained. She told Ms. Pilarski that “it would suck” to work with the Society but that she would if she had to. She has told a Society worker to “fuck off.” At trial it was clear that she did not wish to have unscheduled visits with Society workers and would only permit them if she “had to.” At one point she stated that she would “never call them for anything.” This is not a solid basis – or indeed any basis – for a supervision Order, which requires a working relationship between the caregiver and the Society.

h. The paternal grandmother was untruthful with the police about the child A.’s whereabouts when she returned from Alberta in February 2019. A. was supposed to go to the foster home but went to stay at the paternal grandmother’s home instead. She initially denied to the police that A. was with her. This failure to be truthful in respect of the whereabouts of a child is problematic.

i. The father and the children lived with the paternal grandmother for a time after the death of the mother. The paternal grandmother testified, understandably, that it was stressful to have them there and that it was a “whole other family” in her home. During the trial she stated that she does not want to be a mother to these children – “been there, done that” – she wants to be a grandmother. While she is putting forward a plan, she appears to be doing so reluctantly.

j. Finally, based on her statements to Ms. Pilarski and her testimony during the trial, I have grave concerns about the paternal grandmother’s willingness and ability to support the children’s connection with their First Nations heritage. When initially asked whether they are Indigenous children she stated, “so I am told in the court papers.” Later in her evidence she stated that they are First Nations children (“any one can see that”), while also maintaining that they are “no different” than her other grandchildren, and that “they had no more Indian blood than her.” In an interview with Ms. Pilarski during which this issue was discussed, the paternal grandmother referred the children’s First Nations heritage as “any of that bullshit,” stating that the children’s mother had not wanted to “play that card.” She was angry and agitated, as she was at trial when questioned on this issue.

k. The paternal grandmother seemed to feel strongly that the children’s First Nations background is being highlighted to the detriment of their “white” background [her word, not the court’s]. She stressed that they are 50% their mother and 50% their father, and was very focussed on the children’s lack of formal “status” with a band. She stated that in her view that “that First Nation” should not have any rights to say anything about how the children are raised. I do not believe that she will take the necessary steps to ensure that the children remain connected to their First Nations community and heritage.

[165] For the foregoing reasons, I am unable to find that placement with the paternal grandmother under terms of supervision would adequately protect the children, or be in their best interests, having regard to both the federal legislation and the CYFSA.

Option # 3: Placement with the Paternal Aunt under Supervision

[166] The father’s third choice is placement of the children with the paternal aunt, also under terms of supervision. The paternal aunt also resides at L. Court with the paternal grandmother, the father, and her own two children.

[167] A kinship assessment was undertaken by Society kinship worker Mark Wotton in the fall of 2020. Mr. Wotton has significant experience working in the child protection context, most recently as a protection worker from 2000 – 2017 and for the last three years as a kinship worker. I find Mr. Wotton gave his evidence in a balanced manner, responding clearly to questions put to him by all counsel. His testimony was consistent with his written kinship assessment. Where his evidence conflicts with that of the paternal aunt, I find that he was the more credible witness.

[168] At the commencement of the assessment, Mr. Wotton was told by the Society that a requirement for a positive assessment was that the paternal aunt have independent housing, and the paternal aunt appeared to understand that.

[169] At the time of the assessment, the paternal aunt was 33 years old and had two children. She was living apart from the children’s father (although not separated), and had been residing with the paternal grandmother for at least six years. While the assessment was underway, the adult child A. and her child G. were also living in in the same residence. The paternal aunt told Mr. Wotton that her sources of income are ODSP and child tax credits, and that she is able to manage her finances and meet the needs of her children.

[170] Mr. Wotton met with the paternal aunt on five occasions, twice in person and twice virtually for the assessment itself, and once virtually to explain the outcome of the assessment. The face-to- face meetings were not undertaken at the home. The paternal aunt hoped to obtain her own housing if the children were placed with her. A worker wrote a letter of support for her to obtain housing, but none had been obtained during the assessment nor by the time of trial.

[171] Mr. Wotton testified that the paternal aunt presented positively, that she was soft-spoken, cooperative, genuine, and empathic towards her brother. He found that she presented as stable and appropriate. Mr. Wotton also testified that she was aware of both past and current drug issues in relation to the father, that he struggled with mental health issues, and that the hoarding issues had begun when the children’s mother died. She said the paternal grandmother has a very close relationship with the father, and Mr. Wotton expressed a concern about alignment between them.

[172] Notwithstanding the paternal aunt’s positive attributes, Mr. Wotton did not approve the kinship assessment. He stated that the main obstacle was housing, and that if she were to obtain housing, she would “certainly” be reconsidered. Since the assessment, the paternal aunt has not come forward to advise that she has obtained housing.

[173] Based on the evidence of Mr. Wotton, and my observations of the paternal aunt at trial, there are a number of positive aspects of her plan to care for the children.

a. The paternal aunt loves the children.

b. The paternal aunt appears to be successfully raising her own children, aged six and eight. She presented as sweet and caring.

c. Placement with the paternal aunt, like placement with the father or paternal grandmother, would also foster connection with all of the paternal family, including the children’s sister, A., and A.’s child.

d. The paternal aunt does not appear to have had difficulty maintaining a positive relationship with the Society and did not display any antipathy towards their continued involvement.

e. The paternal aunt has no criminal record, and there was no evidence of issues with drug or alcohol use.

f. The paternal aunt stated that she is supportive of keeping the children connected with their First Nations culture.

[174] Nevertheless, I have concerns about placement of the children with the paternal aunt and I find that placement with her would not adequately protect the children. My concerns include the following:

a. The paternal aunt’s housing is unstable for the same reasons as set out above. There is no concrete plan for separate housing.

b. While the paternal aunt appears to have been forthright with Mr. Wotton about her understanding of her brother’s mental health and substance use issues during the assessment process, that was not the case at trial, during which she referred to those issues as “accusations.” She claimed to have no knowledge even of her brother’s marijuana use, which he freely acknowledged at trial, even though they are residing in the same home. It appeared to me that she was either being evasive with the court, or that she is remarkably unaware of her brother’s challenges, which is itself a protection concern.

c. On balance, I find that the paternal aunt was being evasive with the court. I find that her statements to Mr. Wotton were accurately recorded during the assessment and that she was attempting to protect her brother at trial by denying knowledge of his struggles. This does not bode well for a supervision Order which requires both candour with the Society and with the court.

d. Although the paternal aunt testified that if the children were placed with her, she would be the decision-maker regarding their care, I have concerns about whether that would in fact be the case. The paternal grandmother appears to be the decision-maker, even on matters that affect the safety of the paternal aunt’s own children. For example, there was evidence that the paternal uncle N. had recently been staying in the home due to concerns about COVID-19 exposure. When asked about who made that decision, given that the paternal aunt has two young children who should also be protected from COVID-19, it became apparent that it had been the paternal grandmother’s decision, not the paternal aunt’s.

e. Although the paternal aunt stated that she is open to taking steps to foster the children’s cultural identity and connection with their First Nations community, she appeared to have very little understanding of this issue.

f. Overall, I find that the paternal aunt presented much less favourably to the court than she did to Mr. Wotton, given what I find to be her evasiveness and lack of candour.

[175] I am unable to find that placement with the paternal aunt under terms of supervision would adequately protect the children, or be in their best interests, having regard to both the federal legislation and the CYFSA.

Option # 4: Placement with the Maternal Aunt under a Custody Order

[176] The Society’s position, and that supported by the OCL on behalf of the children, is placement with the maternal aunt under a custody Order. As seen, the maternal aunt resides in Alberta. The children have been in her care since July 2020, although initially this was planned to be simply a visit.

[177] The maternal aunt is 47 years of age. She lives in a stable home in W., Alberta, where she has resided for about ten years. She has space for the children in her current home. The maternal aunt is an addiction counsellor with a community organization and has worked in this field for over 12 years. She speaks “bits and pieces” of Cree. She has two adult children, a daughter who lives independently, and an adult son residing in the home. She has no criminal record.

[178] The maternal aunt is culturally connected to the Samson Cree First Nation and her Indigenous background is an important part of her identity. She states that she is “Nehiyawak”, which she says means “non status Indigenous people.” The maternal aunt testified that her connection to her culture is “in our home, every day, all day.” The maternal aunt has the support of her adult children in putting forward a plan to have the children placed with her.

[179] The maternal aunt testified that she sees herself as having a responsibility to assist in raising the children and that she is prepared to do so for as long as necessary. She stated that she hopes their father will become healthy and that he can resume care of them. She is not looking to care for the children permanently, if that is not required, and is not seeking to adopt the children. It is clear that she is not trying to replace the father and that she respects him.

[180] Claudette Ratcliffe performed a kinship assessment in relation to the maternal aunt in the spring of 2020. She explained that Children’s Services in Alberta retains Catholic Social Services, which in turn hires private contractors such as her to conduct assessments. Ms. Ratcliffe has been conducting kinship assessments as a contractor for 13 years and stated that she has completed approximately 700 such assessments. She indicated that she has previously been qualified as an expert by courts in Alberta. I found her report, which was entered into evidence, to be very thorough and her testimony to be credible.

[181] Overall, Ms. Ratcliffe found the maternal aunt to be highly cooperative and well-qualified to care for the children. She found her to be calm and accepting, and noted that she spoke highly of both parents. Ms. Ratcliffe described the maternal aunt as having specialized parenting expertise, a high level of empathy towards both parents, a close cultural connection, and a commitment to maintaining the children’s relationships with their paternal family. She had a plan for substitute caregiving if necessary, that being her adult daughter. The maternal aunt had also participated in a caregiver training program as part of the assessment.

[182] The only unmitigated concern during the assessment was the maternal aunt’s level of savings. Ms. Ratcliffe testified that while the maternal aunt can meet her ongoing expenses, she did not have significant savings. Notwithstanding this concern Ms. Ratcliffe approved the kinship assessment.

[183] Based on the kinship assessment, Ms. Ratcliffe’s testimony, and the testimony of the maternal aunt, I find that there are many positive aspects of placement of the children in her custody. These include the following:

a. The maternal aunt loves the children. She has a longstanding relationship with them, both from when the children resided in Alberta before moving to Ontario in 2016, and subsequently. Since the Society became involved there have been at least seven visits with the children, in Alberta and Ontario, including their current extended stay in Alberta.

b. The maternal aunt is in a position to house the children where she currently resides, without a need for further housing applications or a need to move. The children have been in this home since July 2020 (now nine months) and the home and community are by now familiar to them.

c. The maternal aunt has significant skills as a parent and caregiver, as noted by Ms. Ratcliffe. She is able to meet the specific needs of the children either directly, or by connecting them to appropriate services. Two of the children are currently connected with services (E. with services for PTSD and O. with services related to emotional regulation, anxiety, and potential ADHD).

d. The maternal aunt presents as genuinely respectful of the father and the father’s family, and it is clear to the court that she does not see herself as replacing the father. She sees herself as helping for as long as necessary and is supportive of the father resuming care of the children when he is able. As an addiction counsellor, she is knowledgeable about substance use issues and approaches the father’s challenges with empathy and respect. This is important in terms of the children’s perspective on their father and in turn on their own identity.

e. The maternal aunt has a deep cultural connection to her First Nation and is committed to sharing this with the children as part of their heritage and identity.

f. The maternal aunt has a positive relationship with the children’s sibling, A., and would ensure that the children remain connected with her. For example, in early 2019, after the assault by the father (in the fall of 2018), A. went to Alberta to stay with the maternal aunt for approximately one month. On the evidence, I believe that the maternal aunt would continue to foster a relationship between A. and these children.

g. The maternal aunt testified that although she does not have a great deal of knowledge of the father’s ethnic/cultural background, as neither he nor the mother spoke about this a great deal, she is open to learning more about this and sharing it with the children. She said that she would support the children learning about this if it is important to the father. (She did note that in the 12 years she had known the father, he had never referred to specific customs or cultural practices passed down in his family.)

[184] I accept the evidence of the maternal aunt that she is committed to bringing the children to Ontario regularly to spend time with their father and their extended paternal family, and that they are welcome to visit the children in Alberta as well. She is also open to virtual access by telephone or Skype/ Zoom/ FaceTime or other video platforms.

[185] I have very few concerns about this placement, but I do have three:

a. My primary concern about this placement is the distance that the children will be from their father and their paternal family. It would of course be preferable, if possible, to keep the children closer to their father, their only living parent. This distance will necessitate travel, as well as virtual access in between face-to-face visits.

b. I am also concerned about the distance between the children and their sister A. There is, as I have stated, a strong bond between them. It would have been preferable, if possible, to keep the siblings closer together.

c. Finally, I have a modest concern with respect to the financial aspects of placing the children with their maternal aunt. Although the evidence is that she meets her expenses, the assessor found that she had very little by way of savings. However, I find that this concern is more likely than not to be mitigated through federal benefits available to “custodial” caregivers. (And I note that the concern would be similar in terms of any of the placements proposed by the father).

[186] Balancing the evidence about the plan to place the children in the custody of their maternal aunt, and considering the alternatives proposed by the father, I find that it is appropriate to place the children with their maternal aunt as sought.

[187] The evidence about the strengths of the maternal aunt as a caregiver is impressive, and I find her attitude towards her role positive and nurturing. I find it significant, in addition to her many strengths, that she values the place of the father and the paternal family in the children’s lives and supports the father’s future role, when healthy, with the children.

[188] The access terms, which I will discuss below, significantly mitigate (although do not eliminate) my concerns about the geographic distance between the children and their father and sister. The Society has made commitments to help protect those relationships. In the circumstances, and given my determination regarding the plans put forward by the father, this is the best and least disruptive option available to these children at this time. I find that placement in the custody of the maternal aunt will protect them from risk of harm.

Terms of Custody Order

[189] Section 102(2) of the CYFSA provides that a custody Order made under this section and any access Order made under s. 104 are deemed to be made under s. 28 of the CLRA. The court may make any Order that could be made under s. 28 of the CLRA and give any directions that could be given under s. 24 of that Act.

[190] As part of the custody Order the Society sought the following additional terms, leaving aside the question of access which is addressed below:

1. Any variation of this Order will be done in the Province of Ontario under the Children’s Law Reform Act and the [maternal aunt] shall be noted as the Applicant.

2. Any proposed changes to the custody and access arrangement are to be reported by [the maternal aunt] to the Children’s Aid Society of the Regional Municipality of Waterloo.

[191] I sought submissions on the issue of whether, if the children are residing in Alberta, I could order that any variation should be done in Ontario under the CLRA as sought. All counsel submitted that this Order could be made. Of course, when a variation application is brought, it will be for the judge hearing the matter to determine whether it is still appropriate to assume jurisdiction having regard to s. 22 of the CLRA.

[192] I do not have difficulty with the second ancillary term sought by the Society.

E. ACCESS

[193] Section 104 of the CYFSA provides for the making of an access Order where in the children’s best interests, and states that the court “may impose such terms and conditions as the court considers appropriate.” The best interests’ considerations are set out above at paras. 111-118, above.

[194] Section 105 provides that where a child is removed from a person having charge of the child, and a custody Order is made under s. 102, the court shall make an Order for access by the person unless satisfied that continued contact will not be in the child’s best interests.

[195] Section 105(6) provides that in assessing best interests for the purpose of access, the court shall consider (a) whether the relationship between the person and the child is beneficial and meaningful to the child and (b) if relevant, whether access would impair opportunities for adoption.

[196] There is no disagreement in this case that access by the children to their father is in their best interests considering all of the applicable factors. All parties recognize that the father has a loving bond with the children and that a continued relationship will be meaningful and beneficial to the children. Adoption is not contemplated so that is not a consideration.

[197] Similarly, access between the children and their sister A. is in their best interests. Their relationship is strong and loving and the children benefit from their connection with her.

[198] The father, while he opposes a custody Order in favour of the maternal aunt, asks that in the event that the children are placed with the maternal aunt, he be granted specified access, with both regular face-to-face parenting time and provision for virtual access.

[199] The Society has proposed the following access arrangement for the children to maintain regular contact with their father:

1. Virtual access at least once per week for one hour;

2. Three face-to-face visits per year to be arranged between the father and the maternal aunt. This access would be supervised or not, in the discretion of the maternal aunt. It is not specified whether this would take place in Ontario or Alberta;

3. In the event that the maternal aunt requires financial assistance for the face-to-face access visits and is unable to secure funding from other sources, the Society would cover the cost of those visits;

4. In the event that the maternal aunt determines that supervision is required and she is unable to provide that supervision, the Society would arrange for and pay for this; and

5. Such further and other access as the father and the maternal aunt may agree to.

[200] In my view, the terms proposed by the Society with respect to access are reasonable and in the children’s best interests, with one caveat. To the extent that the access takes place in Ontario, the children’s bond not only with their father but with their sister and paternal extended family more generally, would be promoted and enhanced. By contrast, if the access takes place by bringing the father to Alberta, this does not enhance the children’s access with their sister or with the paternal extended family.

[201] Therefore, I would amend the term proposed by the Society to provide that a minimum of two of the three annual visits are to take place in Ontario, unless the father and maternal aunt agree otherwise in advance in writing. I would also provide that each trip be no less than five days in length, to allow for numerous periods of access within each “visit” with the children, again, unless the parties agree otherwise in advance.

F. ORDER

[202] This Court orders as follows:

1. This Court makes the following findings:

a. the names and dates of birth of the children are E. S. V. H., born [date omitted, 2010]; O. A. N. H. born [date omitted, 2011]; and S. E. O. H, born [date omitted, 2015];

b. the children are First Nations, Inuk or Métis children; the band is Samson Cree First Nation;

c. the location from which the children were removed is the Waterloo Region, Ontario;

d. the children are in need of protection pursuant to section 74(2)(b)(ii) of the Child, Youth and Family Services Act, 2017.

2. Pursuant to section 102 of the Child, Youth and Family Services Act, and in the best interests of the children, [the maternal aunt] shall have custody of the children E. S. V. H., born [date omitted, 2010]; O. A. N. H. born [date omitted, 2011]; and S. E. O. H., born [date omitted, 2015], collectively referred to as “the children”;

3. The father shall have access to the children as follows:

a. Virtual access to take place a minimum of one (1) time per week for a period of approximately one (1) hour, at such times as may be arranged between the maternal aunt and the father.

b. Face-to-face access shall take place a minimum of three (3) times per year, at such times as may be arranged between the maternal aunt and the father, having regard to the children’s schedules, and subject to any travel related restrictions arising from the COVID-19 pandemic. A minimum of two of each of the three visits shall take place in Ontario, and each visit shall be no less than five (5) days, unless the maternal aunt and the father agree otherwise in advance in writing. The duration of access periods within each five-day visit shall be determined by the maternal aunt, and she may determine whether access shall or shall not be supervised and if so by whom.

c. Should the maternal aunt require financial assistance for travel-related expenses in connection with the face-to-face access referred to in paragraph 3(b), and should such financial assistance not be available from other sources (such as Jordan’s principle funding), The Children’s Aid Society of the Regional Municipality of Waterloo shall provide such financial assistance. The Children’s Aid Society of the Regional Municipality of Waterloo shall review the family’s financial circumstances and the need for financial assistance for travel-related expenses on an annual basis for the duration of the custody Order, on the anniversary of this Order each year.

d. Should the maternal aunt determine that the face-to-face access referred to in paragraph 3(b) requires supervision, and should she not be in a position to provide such supervision or to identify an appropriate third party to provide such supervision, The Children’s Aid Society of the Regional Municipality of Waterloo shall provide support regarding supervision of the access. The Children’s Aid Society of the Regional Municipality of Waterloo shall review the need for such support on an annual basis for the duration of the custody Order.

e. Such further and other access as may be agreed upon between the maternal aunt and the father.

4. Any proposed changes to the custody and access arrangement are to be reported by [the maternal aunt] to The Children’s Aid Society of the Regional Municipality of Waterloo.

L. Madsen, J.

Date: April 6, 2021